Legal remedies for violations of the rights of returnees and suspensive effect of appeals under the German Residence Act and jurisprudence

On 21st of October 2016, the Migration Policy Centre, together with the Odysseus ACADEMIC network, organised within the framework of the project REDIAL (Return Directive Dialogue) the Conference: CHALLENGES IN THE LEGAL AND JUDICIAL IMPLEMENTATION OF THE RETURN DIRECTIVE. 

The primary goal of this Conference was to bring together judges, lawyers, NGOs representatives and academics in an open dialogue and under one roof to raise awareness and discuss the current challenges in the implementation of the EU Return Directive and to develop possible strategies as to how the implementation could become more effective while at the same time ensure respect of the returnees’ rights.

The Conference concluded the one year project dedicated to assessing the judicial implementation of the Return Directive in the Member States – REDIAL.

The preliminary results of the REDIAL Project show that the various European and domestic actors need to work in collaboration with one another in order to achieve the difficult objective of enhancing effectiveness of the EU return system while ensuring that the rights of migrants are not disregarded. The role of national courts and judicial dialogue in ensuring the effective implementation of the Return Directive was a common theme explored throughout all the presentations of the Conference.
In the following weeks, several presentation of the participating judges and lawyers will be published on the REDIAL blog, touching on various issues within the implementation of the Return Directive.

The first blog post is the presentation of Judge Harald Dörig, from the German Supreme Administrative Court on the subject of

Legal remedies for violations of the rights of returnees and suspensive effect of appeals under the German Residence Act: 

According to the German Residence Act you can appeal against an expulsion decision and against the decision preparing the deportation.

1) What are the administrative acts that can be appealed against?

The ‘return decision’ in the meaning of Article 3(4) of the EU Return Directive is in Germany called the ‘deportation warning’. The deportation as such is an “act of execution” (Vollstreckung) and can only be stopped or postponed by injunctions for interim relief.

As a principle, no deportation can be executed without a prior deportation warning. The deportation warning shall be issued specifying a reasonable period of between seven and 30 days for voluntary departure. By way of exception, a shorter period may be set, or the granting of such a period may be waived altogether if, when assessed on a case-by-case basis, it is deemed vital in order to safeguard overriding public interests, in particular where:
1. a well-founded suspicion exists that the foreigner intends to evade deportation,
2. the foreigner poses a serious danger to public safety or law and order.

A further exception applies for persons in detention, who only have to be notified several days in advance that the deportation will take place.

2) What possibilities to appeal does a returnee have?

A returnee can appeal an expulsion decision, and in this case the appeal has automatic suspensive effect. The returnee can – as a rule – remain in the country until the courts have finally decided on the appeal. This is however not the case if the government orders the immediate execution of the order and gives written reasons as to the special interest justifying the immediate execution of the administrative act.

If the expulsion decision is final or if the returnee is obliged to leave the country because his stay is clearly illegal, he can directly appeal against the deportation warning. In many cases, however, the deportation warning is part of the administrative act which orders the expulsion. In this case an appeal against the expulsion order has suspensive effect also for the deportation warning because the decision on the illegality of the stay is not yet final.

The appeal against the deportation warning is an action of annulment. However, it has no suspensive effect because the deportation warning is part of the procedure of executing the return decision. And appeals against “acts of execution” have no suspensive effect. The court can however order the suspensive effect of the appeal (Section 80(5) German Code of Administrative Procedure) if there are indications of flaws in the deportation warning, such as because the individual would be returned to a country posing a possible threat of persecution or serious harm.

It is also possible to attain interim protection against the deportation (Section 123(5) German Code of Administrative Procedure) if the applicant subject to a return decision can claim to have a right to remain in Germany at least for a certain period. Among the possible grounds for making this claim are an actual serious illness or an advanced pregnancy which would prevent the returnee from flying in an aeroplane. However, a further ground could also be the right to remain in Germany as a witness in a criminal proceeding or for humanitarian reasons (such as when caring for a child whose mother is sick). Since 2015, one of the grounds for postponement of the deportation can also lie in the fact that a foreigner under the age of 22 has started a qualified professional education in Germany and does not come from a safe country of origin.

Since 2016, a returnee has to meet higher requirements in order to base an action for an injunction on medical grounds. The illness must be rendered credible by a qualified medical certificate and this certificate must be delivered to the authorities without delay. Otherwise the medical grounds may not hinder the deportation.

The returnee can receive legal aid for the recourse to the courts. The granting of legal aid depends on the applicant’s financial needs and requires a court decision regarding the chances of success of his intended action.

Most standards for the recourse of returnees to courts are based in German law and are not the result of the implementation of EU law or ECHR standards in German jurisprudence.

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